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2008 (10) TMI 713
Quashing of a First Information Report (FIR) - commission of offences of cheating, criminal breach of trust and forgery - High Court exercised its inherent jurisdiction u/s 482 of the CrPC wholly illegally and without jurisdiction - Appellant lodged a FIR against the respondents u/s 409, 420 and 468 r/w Section 34 - First and second respondent approached the High Court for an order for quashing FIR - High Court allowed the proceedings - admittedly the investigation was not even complete - Vicarious liability of Respondent Nos. 1 and 2 -
LKP Shares and Securities Ltd. (the Company) is a company registered and incorporated under the Indian Companies Act, 1956 -Respondent No. 1 is its President, the second respondent is its Branch Coordinator. Both of them are stationed at Bombay which is its headquarters. It has many branches including the one at Chennai. Every branch is said to be an independent entity.
Respondent No. 3 who has been arrayed as accused No. 3 in the FIR was the Branch Manager of the company at Chennai. Indisputably, all interactions and transactions by and between the appellant and the company, if any, were made by the complainant only with the respondent No. 3.
HELD THAT:- The allegations contained in the FIR, do not disclose an offence against the respondent Nos 1 and 2. They have in their individual capacity been charged for commission of offences of cheating, criminal breach of trust and forgery.
As there had never been any interaction between the appellant and them, the question of any representation which is one of the main ingredients for constituting an offence of cheating, as contained in Section 415 of the IPC, could not arise. Similarly, it has not been alleged that they were entrusted with or otherwise had dominion over the property of the appellant or they have committed any criminal breach of trust.
So far as allegations in regard to commission of the offence of forgery are concerned, the same had been made only against the respondent No. 3 and not against the respondent No. 2. Sending a copy thereof to the National Stock Exchange without there being anything further to show that the respondent No. 2 had any knowledge of the fact that the same was a forged and fabricated document cannot constitute offence.
We do not find any legal infirmity in the impugned judgment. however, we must clarify one aspect of the matter.
Respondent No. 3, arrayed as accused No. 3 in the FIR, did not file any application u/s 482 of the CrPC. We do not know under what circumstances, the High Court directed service of the notice on him. Nowhere in the impugned judgment, High Court found that the allegations contained in the First Information Report against the respondent No. 3 also do not disclose commission of any cognizable offence. It is one thing to say that he has not committed the same but it is another thing that the High Court's jurisdiction u/s 482 of the CrPC could have been invoked at this stage.
Therefore, we have no other option but to hold that the High Court in its judgment cannot be said to have covered the case of the respondent No. 3. The investigation against him, therefore, shall continue. However, it will be open to him to take appropriate defences at appropriate stages as are permissible in law.
The appeal is dismissed.
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2008 (10) TMI 712
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... ... ..... the Act and could not be excluded from the book profits. Accordingly, the conclusion of the Tribunal in directing the Assessing Officer to rectify the alleged mistake of inclusion of the unascertained liability in the book profit could not be upheld. In view of the above decision, we find nothing wrong with the order of the CIT(Appeals) and the same is confirmed. 21. With regard to the second ground, identical issue has been adjudicated by us as above while adjudicating the Assessee's appeal for the Asst. Year 2003-04 whereby after detailed discussion and analysis, we held that the Assessee's capital expenditure incurred on road would be entitled to depreciation in the category of building. Following that decision for this year also, we hold that the road is eligible for depreciation in the category of building and accordingly direct the Assessing Officer to allow depreciation as directed above. 22. In the result, the appeals filed by the Assessee are partly allowed.
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2008 (10) TMI 711
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... ... ..... anomalous situation that a person who, by his own conduct, precludes the coming into existence of the contract is then given advantage or benefit of hi own wrong by not allowing forfeiture. It must be remembered that, particularly in government contracts, such a term is always included in order to ensure that only a genuine party makes a bid. If such a term was not there even a person who does not have the capacity or a person who has no intention of entering into the contract will make a bid. The whole purpose of such a clause i.e. to see that only genuine bids are received would be lost if forfeiture was not permitted. 16. In view of the binding authority of Supreme Court this Court does not feel it necessary to consider two citations referred to by learned Counsel for the petitioners. This Court, therefore, holds that the impugned orders does not suffer from any infirmity or illegality. 17. The writ petition deserves to be dismissed and is accordingly dismissed. No costs.
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2008 (10) TMI 710
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... ... ..... writ petition, which is pending before the Madras High Court, where the issues are similar. Having heard Mr. Karpaga Vinayagam, learned counsel appearing for the petitioners in the contempt petition, we direct the alleged contemnor/opposite parties to publish a fresh seniority list in terms of the directions given by us in C.A. No.1454/87 on 10/02/1999. The petitioners undertake to withdraw the writ petition, being No.2571 of 2007, which is pending before the Madras High Court within four weeks. Let the contempt petition stand over for a period of six weeks for the present. The appearance of the alleged contemnor/opposite parties is dispensed with for the present. Two applications, being IAs 2 and 3 of 2008 have been filed on behalf of some of the promotees for impleading them as parties to the contempt proceedings. Since this is a contempt petition, instead of impleading the applicants we allow them to intervene in the matter. The applications are allowed to the said extent.
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2008 (10) TMI 709
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... ... ..... ome-tax Appellate Tribunal, by virtue of the impugned order, confirmed the deletion made by the Commissioner of Income-tax (Appeals) and, relying on its order in respect of assessment year 2001-02, held that the expenditure was of a revenue nature and, therefore, was allowable under section 37(1) of the said Act. 6. The revenue filed an appeal against the Tribunal's order for the assessment year 2001-02. The said appeal is numbered as ITA 173/2008. An identical question had arisen in that appeal pertaining to a similar expenditure of approximately ₹ 3.08 crores. While this Court, by an order dated 18-8-2008 admitted the appeal on certain other questions, by the same order, this Court was of the view that this issue did not raise any substantial question of law. Since this is the only issue raised in the present appeal, following the order passed by us on 18-8-2008, we hold that no substantial question of law arises for our consideration. 7. The appeal is dismissed.
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2008 (10) TMI 708
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... ... ..... datory in view of the Board’s Circular No. 37/2005 dated 6-5-2005, Insecticides Act, 1968 and Import Policy. (ii) Whether the import of Cyplus Sodium Cyanide Bricks for non-insecticidal purpose could be allowed without registration with the Registration Committee and without obtaining an import permit, in breach of Section 9 of the Insecticide Act, 1968 read with CBEC’s Circular No. 37/2005 dated 6-9-2005. 3. To be heard along with Customs Appeal No. 35 of 2006.
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2008 (10) TMI 707
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... ... ..... Mr. Jhaveri then referred to the case of T.S. Balaram, ITO v. Volkart Bros. 1971 82 ITR 50 (SC), wherein the Supreme Court held that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record. 13. Even Mr. Parag Vyas, the learned Counsel for the revenue could not refute that various High Courts in India had followed four High Court's judgment in Shirke Construction Equipments Ltd.'s case (supra). 14. Hence, we are clearly of the view that the Deputy Commissioner of Income-tax had no jurisdiction to pass an order under section 154 of the Act on 6-1-1992 as the issue of computation of deduction under section 80HHC was a debatable issue. 15. Hence, we answer the above question in the negative, against the revenue and in favour of the assessee.
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2008 (10) TMI 706
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... ... ..... llows I examined the patient, I did not find any obvious psychiatric illness. He was still kept under observation. Subsequently, Dr. Badgujar (PW.10) medically treated patient Sidhapal. 15. Similarly, Dr. Subhash Badgujar (PW.10) who also treated the appellant form 18.7.2002 i.e. the date of admission till 25.7.2002 the date of discharge has stated as follows The said patient Sidhpal Yadav was not mentally ill person from 18.7.2002 to 25.7.2002. 16. According to PW.10 when he examined the appellant on 18.7.2002 in the evening he was calm and quiet. He was neither angry nor was he shouting. This according to the doctor indicated that the appellant was normal. In the medical records it has been clearly stated that he was not cooperative and it was difficult to establish any rapport with him. 17. Accordingly, the trial Court and the High Court have rightly held that Section 84 IPC has no application to the facts of the present case. 18. The appeal is sans merit and is dismissed.
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2008 (10) TMI 705
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... ... ..... in buy orders within the upper circuit limit on all the days that it traded on behalf of Ameet Parikh and if those orders resulted into trades, there being a willing seller to sell at those rates, it cannot be said that the appellant was artificially trying to raise the price of the scrip unless collusion could be established with the counter party. We, therefore, come back to the conclusion which we have already drawn that for the charge of raising price artificially to be established, the element of collusion between the buyer and the seller is a sine qua non. 8. For the reasons recorded above, it is difficult to hold that the appellant by placing purchase orders on behalf of Ameet Parikh at prices higher than the last traded price, was artificially trying to raise the price of the scrip of JIK. In this view of the matter the impugned order cannot be sustained. In the result, the appeal is allowed and the impugned order set aside leaving the parties to bear their own costs.
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2008 (10) TMI 704
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... ... ..... ive them of the incentive which has been specifically offered under the scheme for which the Act came to be amended and would be in total conflict with the object and reasons with which the Government sought amendment of the Act nor this can be considered as a case of unjust enrichment as even, otherwise, the gross admission fee which the patron is supposed to pay minus the entertainment tax and other taxes (direct or indirect) would ultimately go in the pocket of the proprietors of the multiplex theatres. 63. Therefore, we find that the State was not entitled to claim more than what could be levied as entertainment duty during the two years period irrespective of the fact that the Exhibitors have shown on admission tickets issued to patrons 45% of the duty though they were liable to pay only 25% of 45% during the incentive period which was of 2 years. The impugned notices and order Exh A-1 and A-2 and H are quashed and set aside. Rule made absolute with no order as to costs.
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2008 (10) TMI 703
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... ... ..... rson when received from a person other than his employer? (D) Whether on the facts and in the circumstances of the case and in law the Tribunal misdirected itself in holding that even assuming that the impugned receipt is not exigible to tax under the head ‘salary’ due to the absence of an employer-employee relationship yet the same is liable to be taxed under the head ‘income from other sources’ in view of the decision of the Apex Court in EMIL Webber Vs. CIT (200 ITR 483) and contrary to Nalinikant Ambalal Mody v/s CIT (61 ITR 428) ? (E) Whether on the facts and in the circumstances of the case and in law, the Tribunal is justified in rejecting the argument of the appellant that if at all, the impugned receipt is correctly assessable under the head 'capital gains’? Parties to act on the copy of this order duly authenticatecl by the Associate / Private Secretary of the Court. Certified copy is expedited. D.K. Deshmukh And J.P. Devadhar, JJ.
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2008 (10) TMI 702
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... ... ..... tances of the case and in law, the Tribunal’s conclusion that the Appellant did not acquire any capital asset at any time on the grant of stock options and thus the impugned sum is not exigible to tax as capital gains is sound and maintainable? (viii) Whether on the facts and in the circumstances of the case and in law, the Tribunal erred in approving the saddling of interest under Sections 234A, 234B and 234C of the Act? (ix) Whether on the facts and in the circumstances of the case and in law, the Tribunal’s order dated 28.3.2008 is perverse, contrary to weight of evidence adduced by the Appellant and founded on irrelevant considerations and therefore, all its conclusions, findings and holdings are vitiated and plagued by infirmities inasmuch as no person acting judicially and properly instructed as to the relevant law would have come to the inferences arrived by the Tribunal in so far the questions projected in serial numbers (i) to (viii) supra are concerned?
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2008 (10) TMI 701
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... ... ..... x Court in the case of Triveni Engineering & Industries Limited v. CCE reported in 2000 (120) E.L.T. 273 (S.C.) held that in the present case the marketability test has not been fulfilled and, therefore, no excise duty is leviable on the sugar factory manufactured out of duty paid parts and accessories. 3. In our opinion, the question of law raised in this case is squarely covered by the judgment of the Apex Court in the case of Triveni Engg. & Inds. Limited (Supra). No question of law arises in this appeal. Hence, rejected.
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2008 (10) TMI 700
Rejection of application to recall the witnesses for cross examination - Section 311 of the Code of Criminal Procedure, 1973 - HELD THAT:- The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by Court gives evidence against the complainant he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a Court arises not under the provision of Section 311, but under the Evidence Act which gives a party the right to cross- examine a witness who is not his own witness. Since a witness summoned by the Court could not be termed a witness of any particular party, the Court should give the right of cross-examination to the complainant.
The factual scenario in Mishri Lal's case [2005 (5) TMI 697 - SUPREME COURT] has great similarity with the facts of the present case. The High Court's view for accepting the prayer in terms of Section 311 of the Code does not have any legal foundation. In the facts of the case, the High Court ought not to have accepted the prayer made by the accused persons in terms of Section 311 of the Code. Thus, we set aside the impugned order of the High Court.
The appeal is allowed accordingly.
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2008 (10) TMI 699
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... ... ..... ffence since 2/3/2002. That thus since 2002 till date the accused is in jail. Minimum sentence prescribed under the NDPS Act has been awarded to the accused, which is even otherwise adequate. In this connection, considering the impugned judgment and order delivered by the Ld. Trial Judge, he has recorded the reasons as to why he was awarding the minimum sentence prescribed under the NDPS Act to the accused. We do not find that the discretion exercised by the learned trial Judge is an arbitrary exercise of his discretionary powers in fixing the quantum of punishment. Under such circumstances, the sentence awarded by the trial Court to the accused to undergo RI for 10 years and to pay fine of ₹ 1 lac and in default to undergo further RI for one year cannot be said to be either too lenient or too harsh. In the result, the appeal preferred by the State for the enhancement of the sentence deserves to be dismissed. For the foregoing reasons, both the appeals stand dismissed.
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2008 (10) TMI 698
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... ... ..... backlog of cases as the accretion to the backlog that would accrue by the institution of fresh cases after the amended provisions were brought into force. Consequently, it would be unreasonable to attribute to the legislature the intendment that while seeking to bring into effect a provision which was intended to cure the delays of litigation, the legislature would have intended to exempt from its purview all cases which have filed prior to the date on which the amendment was brought into force. As noticed earlier a similar submission was expressly rejected by the Supreme Court in Kamal Kumar Dutta v. Ruby General Hospital (supra). 24. In the light of the foregoing discussion, we hold that after insertion of Section 100A in the Code of Civil Procedure no Letters Patent Appeal is maintainable against the judgment rendered by a single Judge in a first appeal arising out of a special enactment e.g. Indian Succession Act. The appeal is, therefore, dismissed as not maintainable.
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2008 (10) TMI 697
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... ... ..... fendants 6 and 10. A question of fraud or misrepresentation, required to be established before holding an agreement to be null and void, is a question of fact and may have to be established only on the basis of oral and documentary evidence. But I am not recording a finding that the Arbitration Agreement is null and void. I am inclined to dismiss the application under Section 45only on the ground that the Arbitration Agreement has become inoperative. The admitted facts and the documents filed by the defendants 6 and 10 themselves, establish this fact conclusively. Therefore, in my considered view, there is no necessity to go through an elaborate trial to find what is so obvious. In view of the above, the application A. No. 2670 of 2008 under Section 45is dismissed. The application for injunction O.A. No. 277 of 2008 and the application for stay of arbitration clause A. No. 1236 of 2008 are allowed and the application to vacate the injunction A. No. 2671 of 2008 is dismissed.
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2008 (10) TMI 696
Interpretation of statute - Rule 3, Sub-rule (5) of Order 37 of the Code of Civil Procedure - Jurisdiction - Summary trial - Recovery for payment - correctness of directing appellant to deposit 55% of the admitted amount as a condition precedent for grant of leave to defend the suit - HELD THAT:- It is now well established as a principle of law that even if a wrong order is passed by a Court having jurisdiction to pass an order in such cases, the revisional Court will not interfere with such an order unless a jurisdictional error is pointed out and established by the person who questions such order.
In the instant case, the High Court did not lack jurisdiction to pass an order with regard to the subject matter of dispute, though the order itself may be incorrect. There is, therefore, little scope for this Court to interfere with the directions given to the appellant herein to deposit in Court 55% of the admitted dues as a pre-condition to grant of leave to defend a suit. The judgment of the High Court impugned in this appeal does not warrant any interference since the trial Court had exercised its jurisdiction under the second proviso to Sub-rule (5) of Rule 3 of Order 37 of the Code. The earlier concept of granting unconditional leave when a triable issue is raised on behalf of the defendant, has been supplemented by the addition of a mandate, which has been imposed on the defendant, to deposit any amount as admitted before leave to defend the suit can be granted. The question as to whether leave to defend a suit can be granted or not is within the discretionary powers of the High Court and it does not appear to us that such discretion has been exercised erroneously or with any irregularity which warrants interference by this Court.
Appeal is, therefore, dismissed.
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2008 (10) TMI 695
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... ... ..... as also filed an undertaking to the effect that the Applicant would withdraw the suit pending before the Civil Curt. 11.In view of the aforesaid facts and circumstances of the case, the Official Liquidator is directed to hand over the possession of the property in question, to the Applicant, which are in his possession, after ascertaining the facts and title documents relating to the property and after satisfying himself to the effect that the Applicant is the exclusive owner of the property in question. It is made clear that before claiming the possession of the property in question, the Applicant has foregone its right to claim arrears of rent, if any, from the Official Liquidator. It is further clarified and directed that as per the undertaking filed before the Court, the Applicant shall forthwith withdraw the Suit pending before the trial Court. 12.Subject to the aforesaid directions and observations, this Company Application is disposed of without any order as to costs.
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2008 (10) TMI 694
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... ... ..... ale, and shall keep a true and accurate record of the proceedings for inspection by the Court. (6) After the sale is confirmed and the sale consideration is deposited, the entire sale consideration shall be kept by the ARCIL in a separate account. (7) The expenses incurred by ARCIL and the Official Liquidator in carrying out their statutory duties shall be deducted from the sale proceeds before any appropriation or disbursement. (8) The ARCIL shall submit the details of the claims of secured creditors including their interest (with details of the calculation of interest) for appropriation, with approval of the Court, after adjustment and deposit of the workmen's dues under Section 529, 529A and 530 of the Companies Act, 1956, and deposit with the Official Liquidator, the surplus amount, if any, for disbursement in accordance with law. 48. The matter shall be listed again on 1st December, 2008. 49. A copy of the order be given to learned Counsel for the parties by Monday.
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